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Paths to Reliable Medical Justice

In “Learning From Litigation” (Op-Ed, May 17), Prof. Joanna C. Schwartz takes a useful development — that hospitals are starting to be more open about their mistakes — and leaps to the conclusion that there’s no reason to create a more reliable system of malpractice litigation.

Let’s count the flaws in the current malpractice system. It’s absurdly slow and inefficient for injured patients, taking an average of five years to settlement and consuming over 50 percent of awards in attorneys’ fees and administrative costs.

The malpractice system also has a high error rate, with one of four payments made in cases where the doctor did nothing wrong. This hardly inspires confidence in doctors, who order unnecessary procedures to provide “proof” that they did everything possible. For the public, the resulting defensive medicine unnecessarily wastes an estimated $45 billion to over $200 billion per year.

Injured patients should indeed have legal recourse. Creating reliable health courts does not do away with litigation but makes it reliable, quick and efficient. It would also systematize the feedback of mistakes so hospitals can improve, enhancing the benefits that Professor Schwartz sees happening on an ad hoc basis.

Controlling health care costs is not possible without addressing the distrust that unreliable medical justice fuels. The question is: How long will the public be willing to pay for that unnecessary waste?

Enhancing quality in medicine and fairness in the civil justice system are not mutually exclusive goals. America’s patients deserve both. While the American Medical Association has been a leader in patient safety and quality improvement, the trial bar has opposed even proven reforms to the nation’s broken medical liability system.

Attempts to regulate health care with excessive lawsuits have failed patients by inviting abuse and inefficiency. According to a Harvard study, 40 percent of medical malpractice claims lack any evidence of either a medical error or patient injury.

The legal system’s culture of unrestrained blame and punishment must be reformed because it breeds fear and mistrust that suppresses information. The extra precautionary measures that physicians take to avoid being sued take a heavy financial toll on our health care system.

The current system creates such a contentious atmosphere that some physicians are discouraged, even by their own attorneys, from offering an honest apology to a patient when a mistake occurs. Until we rein in the nation’s broken medical liability system — and the fear and mistrust it fosters — we will continue to see physicians afraid to share bad news with patients.

Most medical-legal experts believe that medical malpractice lawsuits against hospitals have catalyzed and hastened numerous changes that have increased the safety of hospitalized patients.

The specious argument that hospitals and physicians will not be forthcoming about such errors because of the fear of being sued, thereby preventing necessary changes from being instituted, is actually quite insulting to health care professionals who have dedicated their lives to patient care.

Furthermore, modern-day technology, increasingly used by skilled attorneys, enables them to eventually ferret out almost all such acts of medical or hospital negligence. Any attempts to conceal significant errors would likely result in substantial punitive damages.

Timely acknowledgment and appropriate explanations and apologies for hospital errors are not only morally, ethically and legally correct, but also good medicine for future patients.

The writer, a doctor and lawyer, is a clinical professor of pathology at the University of Pittsburgh School of Medicine and an adjunct professor of law at Duquesne University.

To the Editor:

As a physician, former county medical society president and litigator, I find Joanna C. Schwartz’s views very helpful. But they need some explanation in a state like Texas, which has had Gov. Rick Perry-inspired tort reform since 2003.

One aspect of that reform is a “willful and wanton” standard for emergency room negligence, which has led to virtually no E.R. malpractice cases in recent years. In San Antonio, the hospitals arrogantly maintain that they are untouchable. And physicians, on the rare occasions they do go to court, can actually admit negligence, but maintain they were not grossly negligent, and juries will give them a pass.

I regularly turn down E.R. death cases because such cases are not winnable in court even if they have clinical merit. In my experience in multiple lawsuits against hospitals in San Antonio, I have not seen one instance in which hospitals have admitted error, admitted any remedial measures or admitted that the physicians involved were subject to any peer review or quality assurance actions.

Tort reform in Texas has resulted in, as one appellate court put it, a “lower standard of care.”

Professor Schwartz deserves credit for challenging the conventional knee-jerk response that we need more tort reform to make patients safer.

BRANT S. MITTLER
San Antonio, May 17, 2013

A version of this letter appears in print on May 24, 2013, on page A24 of the New York edition with the headline: Paths to Reliable Medical Justice. Today's Paper|Subscribe